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Citizens' Arrests and the Lawfulness of Routine Searches by Security Guards: McKenzie v. The State (1998) SC596 [1998] MLJ 8; [1998-99] 26 MLJ 178 (1 January 1998)

Citizens’ Arrests and the Lawfulness of Routine Searches by Security Guards:

McKenzie v The State (1998) SC 596

Lawrence Kalinoe[*]


The recent Supreme Court decision in McKenzie v The State (1998) SC 596 is significant from the point of view of civil liberties, and the refinement of the law on citizens’ powers of arrest including those of security guards. Furthermore, the Supreme Court makes some comments directly criticising and deploring the actions of security guards, particularly in trade stores, in conducting routine or random searches of customers at check points. The Supreme Court of course proceeded to pronounce such actions by security guards to be outside the scope of the Search Act (Ch 341 of the Revised Laws), and consequently illegal. It appears that this significant pronouncement of law by the Supreme Court has not yet been received and understood by security guards and their employers, resulting in the continuation today of the very conduct which the Supreme Court (Los, Hinchliffe and Injia JJ) have denounced. (It is ironical that as I am writing this note here in Madang, the security guards at the Best Buy Supermarket are continuing to conduct full body searches on customers, particularly young male persons, on their exit from the supermarket.)

A striking feature of this decision is that although the matter before the Supreme Court was a straightforward appeal against conviction and sentence by McKenzie, who had been convicted and sentenced to six months imprisonment by the National Court under s 355 of the Criminal Code Act for unlawful deprivation of personal liberty of another person, the court has been exceptionally liberal in seizing the opportunity to comment on the wider societal issues, concerning the typical actions and conduct of security guards in trade stores and supermarkets. The Supreme Court has thus displayed clear attributes of judicial activism in its decision in this case.

Background to the McKenzie Case

A woman was accused of stealing a “hubba-bubba bubble gum” by security guards inside the Satu Wholesale store at about 8 am, soon after the store opened in West Goroka, Eastern Highlands Province. She was then apprehended by a security guard and the store supervisor. At the same time, Mr. McKenzie, who was the general manager of the store, arrived and after conducting his own inquiries concerning the incident, directed the security men to lock the woman up in a brick-wall storeroom located at the back of the store.

After locking the woman up, Mr. McKenzie and his workers completely forgot about her and they went about their normal daily work routine. In the evidence at the trial, Mr. McKenzie said that he “was busy attending to the business of the store because the store had just opened for business for only one month.” Neither Mr. McKenzie, the security guards nor anyone from the store rang the police at Goroka Police Station to report the incident and to request them to come over to take her to the Police Station to be further dealt with.

Luckily for the woman, she was in the company of some relatives when the incident happened that morning, who lodged a complaint at the Goroka Police Station. It was from the relatives’ complaint, rather than from the store management, that the police proceeded to the store and took her away at about 3.30 pm. Evidence at trial established that she had been locked up in the brick-wall storeroom for some eight hours before the police came, one may say, to her rescue!

It was under these circumstances that the police proceeded to charge Mr. McKenzie under s 355 of the Criminal Code Act (Ch 262) that reads:

“A person who unlawfully –

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three (3) years.”

The National Court found Mr. McKenzie guilty as charged and convicted him and sentenced him to six months imprisonment. Mr. McKenzie appealed to the Supreme Court against both conviction and sentence. The Supreme Court dismissed the appeal against conviction but quashed the sentence of six months imprisonment and reduced it to two weeks, the period already served, and a further fine of K1,000 was imposed, to be paid within two weeks, or in default three months imprisonment.

The Supreme Court had initially handed down an oral judgement and promised to consider carefully its reasons and deliver a written judgement, because in its view (at 2):

“The appeal raises a broad but serious issue in the country. Many persons purport to exercise some powers to apprehend and detain others. They include security personnel and others who purport to exercise some powers bestowed upon them by various municipal authorities. We consider it necessary to discuss the relevant laws and constitutional provisions relating to the powers of apprehension, arrest and detention.”

Arrest and Detention

In Papua New Guinea, powers to effect a citizen’s arrest are given by statute law, namely the Arrest Act (Ch 339). Under s 5 of the Arrest Act, an ordinary citizen is empowered to arrest another person without warrant, if that person believes on reasonable grounds that such a person is either in the process of committing an offence or has committed an offence, where that offence carries imprisonment as its penalty. Under s 14 of the Arrest Act, the ordinary citizen that is effecting arrest must at that point inform the arrested person that he or she is now under arrest, and must also tell the person the reasons for the arrest, and must then tell arrested person to accompany him or her to a police station or a court. Reasonable force may be used by the person effecting arrest to prevent the arrested person from escaping. Then s 16 of the Arrest Act requires the person effecting arrest to hand over the arrested person to a police officer, or take or cause the arrested person to be taken to a police station, as soon as possible after making the arrest.

The Supreme Court in this case under review then emphasised (at 5) that “the process of arrest under the Arrest Act ordinarily involves the deprivation of liberty of the person arrested: it involves some form of physical or non-physical detention”. The court then went on to endorse (at 6) the following statement of law made by the Deputy Chief Justice, Sir Mari Kapi in an earlier case regarding the processes of arrest and detention. This is the case of State v Songke Mai [1988] PNGLR 56 (at 69) where the Deputy Chief Justice said:

“It is clear from this Act (Arrest Act) that arrest is the initial step of depriving a person of his liberty and is continually deprived for a period. To put the matter differently, ‘arrest’ and ‘detention’ are two distinct procedures under the law and deprivation of liberty, which is common to both, commences upon ‘arrest’ and ‘detention’. The moment a person is ‘arrested’, he is ‘detained’ from that point on. ‘Arrest’ is very closely followed in point of time by ‘detention’. That is the law relating to ‘arrest’ and ‘detention’ in relation to persons who are suspected of committing a crime.”

The Supreme Court in the McKenzie case then (at 6-7) imposed the following five conditions for the powers of citizen’s arrest to be lawfully exercised to “arrest” and “detain” a person within the powers given by the Arrest Act:

“(1) The person arrested must be found committing or has committed a criminal offence for which the prescribed penalty is imprisonment: Arrest Act s 5;

(2) The force used, if any, to make the arrest or to prevent the escape of an arrested person must be reasonable in the circumstances: s 14(2) Arrest Act;

(3) The means or the method used to detain a person arrested, must be appropriate or reasonable in the circumstances: Arrest Act, s 14(2), s 16(2). As to what is reasonable depends on the given facts of each case. Relevant factors include the seriousness of the offence, resistance to arrest and the imminent risk of escape.

(4) Detention must only be for the purpose of enabling the person arrested to be conveyed to a policeman, a police station, a court or a proper place of confinement.

(5) The person arrested must not be detained for any period longer than is practically and reasonably necessary for the purposes set out above in paragraph 4.”

In the circumstances of the McKenzie case, the initial arrest and detention of the woman “by the store supervisor and the security guard ... for the purpose of taking her to the police station or for contacting the police to come and collect her, was for all [intents and] purposes lawful”. That is to say, she had been caught stealing the humble bubble gum, and stealing is an offence for which imprisonment is prescribed as the penalty under s 48C (2) of the Summary Offences Act. Further, the store supervisor and the security man had told her of the reasons for her arrest; and they had used reasonable force to apprehend and detain her. However (at 8),

“From this point on, what was lawful ‘detention’ turned out to be excessive and therefore unlawful. No attempt was made by the appellant to contact the police immediately or to take her to the police station nearby. The appellant himself could have simply taken her down to the police station in his car and hand her over to the police and laid a complaint. He failed to do so. The liberty of the victim took no priority in his order of business that morning and afternoon. The appellant went about his business and paid no regard to the urgency posed by the victim’s liberty. Even though she did not resist arrest and posed no threat of escape, he directed her to be locked up for some eight (8) hours in a brick-wall storeroom. The victim was only a simple village housewife. Her detention in a high security brick-wall store-room was unnecessary and excessive and therefore unlawful. For these reasons we concluded that the detention was clearly unlawful.”

Search of a Person’s Body, Clothes etc by Security Guards

The Supreme Court was very critical of the actions of security guards in conducting searches of a person’s body, clothes or other belongings at check points, particularly by security guards at shops and supermarkets in the Highlands region. The following passage (at 8-9) captures the full intent and vigour of the judgment:

“Trade store customers, both males and females, are subjected to routine or random searches of their body and clothes by security guards upon their entry and/or exit from self-service trade stores. This is then immediately followed by a citizens’ arrest and detention if the person is found in possession of property suspected to be stolen. If nothing is found, the person is allowed to pass through. Such practices are common in Papua New Guinea today, particularly in the Highlands region.”

The Supreme Court then made reference to the constitutional rights of citizens of freedom from arbitrary search and seizure of the person and property, as guaranteed under s 44 of the Constitution, and the right of privacy guaranteed by s 49 of the Constitution. The court noted that the circumstances in which these rights could be lawfully interfered with are set out under the Search Act (Ch 341), and the powers and duties of those persons authorised to search another person are strictly set out in ss 3-5 of the Arrest Act (as stated above). The court proceeded (at 9) to make the following important points:

“Ordinary citizens who intend to assume ‘police’ powers of search should take time to read these provisions carefully. A careful reading of these provisions show that ordinary citizens including security guards of trade stores have no power to conduct searches of trade store customers. Sections 3 and 5 [of the Search Act] specifically empower only a policeman, Correctional Officer, or an owner or a person in command of a craft or a person authorised by him, to conduct searches. Section 4 sets out the method or manner of conducting searches by those persons authorised to conduct searches under s 3 and s 5. Ordinary citizens are not given any power by the Search Act to search the person and properties, with or without a Search Warrant of trade store customers. We are not aware of any other statutes or regulations which empower ordinary citizens, particularly trade store owners, operators or their security guards, to conduct routine or random searches of customers.”


The pronouncement by the Supreme Court in this case marks a significant moment for civil liberties. The Supreme Court by this case, is sending out a strong message to the community, particularly security guards and proprietors of security companies and the owners of supermarkets and shops, that their actions in subjecting their customers to bodily searches is clearly unauthorised and is therefore illegal.

The message relayed by the Supreme Court to those concerned with depriving people of their freedom and subjecting them to illegal searches is that these actions must stop. Failing that, affected citizens are entitled to seek redress for enforcement of constitutional and civil rights, mainly under s 57 of the Constitution. This is a specific provision of the Constitution that is available particularly for the enforcement of constitutional rights and guaranteed freedoms. If the current trend in the police raid cases going before the National Court is any indication, the damages awarded against trade store owners or providers of their security at check points can be quite high. Quite apart from the enforcement process under s 57 of the Constitution, citizens whose rights and freedoms have been denied by security guards and operators of security firms are entitled to turn to the police for the criminal law process to take its course, as in the circumstances of the present case.

[*] Lecturer in Law, University of Papua New Guinea.

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